Wednesday, November 30, 2011

Military charges more and more men with bogus rape claims--just to show it takes sexual assault seriously

Following our comments is a searing indictment of a military culture that promotes sex crime witch hunts for political reasons. The news report at issue is among the most frightening articles we've ever posted here, and that's saying a lot.

The number of sex-crime allegations sent to courts-martial has increased from 113 in 2004to 532in 2010, according to Defense Department data. Last year, military commanders sent about 70 percentmore cases to courts-martial that started as rape or aggravated sexual-assault allegations than they did in 2009.

The reason is politics. It's up to military commanders to decide whether to prosecute these cases. Unlike civilian prosecutors, who generally don't prosecute cases if there is significant uncertainty about whether they can get a conviction, it's exactly the opposite in the military: a politically conscious admiral or general isn't going to risk their careers by not prosecuting even ridiculous sex claims.

A retired army prosecutor named Timothy MacDonnell asked rhetorically: "What would you have us do? Tell the victim she can't get justice just because it's a hard case?"

It is well that you are able to tell that she's a "victim," Mr. McDonnell, before a scrap of evidence is presented or the defendant is given an opportunity to fairly defend himself. But in response to your asinine query, here's what we would have you do: stop playing Russian roulette, stop rolling the dice, with the lives of presumptively innocent men in the hope that you might "get lucky." Start doing what decent civilian prosecutors do: only prosecute cases where there is a moral certainty of guilt.

Read some of the quotes from the article. They underscore a culture willing to treat innocent men as collateral damage in the "more important," politicized war on rape:

"'. . . the reality is they're charging more and more people with bogus cases just to show that they do take it seriously.'"

"And sometimes, servicemen are falsely accused, as was the case in February 2010 when a Marine Corps Air Station Beaufort Marine was arrested and jailed for more than a month for allegedly sexually assaulting a Laurel Bay woman whose husband was deployed."

"'Because there is this spin-up of "We have to take cases seriously even though they're crap," it creates a kind of a climate of blasè attitudes,' said one Navy prosecutor . . . . There is a pressure to prosecute, prosecute, prosecute. When you get one that's actually real, there's a lot of skepticism. You hear it routinely -- "Is this a rape case or is this a Navy rape case?"'"

"Too often . . . defendants are being prosecuted despite qualms about the evidence, attorneys said."

". . . the military is prosecuting a growing number of rape and sexual assault allegations, including highly contested cases that would be unlikely to go to trial in many civilian courts."

". . . a wide range of people who are involved in the military justice system questioned whether the military was weighing the proper legal considerations when deciding whether to take criminal action."

". . . now many of [these allegations] are given more deference than they're due."

"Given the push to prosecute, many commanders may see a trial as the best way to determine whether allegations are true. 'Most of the rape cases that I've defended in the military system never would have gone to trial in a civilian system because the prosecutor would say, "There's no way I'm taking that to trial because I'm not going to get a conviction,"' said Charles Feldmann, a former military and civilian prosecutor who's now a defense attorney. But in the military, the decision-maker is an admiral or a general who is not going to put his career at risk on an iffy rape case by not prosecuting it."

Here is the entire article:Military rape charges lead to increased trials

By MARISA TAYOLO and CHRIS ADAMS
Published Tuesday, November 29, 2011

WASHINGTON -- By the time Marine Staff Sgt. Jamie Walton went to trial on rape charges, his accuser had changed her story several times.

A military lawyer who evaluated the case told Walton's commander they didn't have enough evidence to go to trial on sexual assault charges. The prosecutor even agreed. But the Marines ignored the advice.

"Everyone knew I didn't rape her," said Walton, who was acquitted of the charge last year. "But they went ahead with the trial anyway."

Walton's questionable prosecution clashes with the public's perception of a soft-on-rape military. A McClatchy Newspapers analysis found that the military is prosecuting a growing number of rape and sexual assault allegations, including highly contested cases that would be unlikely to go to trial in many civilian courts.

However, most of the accused aren't being convicted of serious crimes.

Such results are provoking cynicism within the armed forces that the politics of rape are tainting a military justice system that's as old as the country itself.

"In the media and on Capitol Hill, there's this myth that the military doesn't take sexual assault seriously," said Michael Waddington, a former Army judge advocate who now defends the cases. "But the reality is they're charging more and more people with bogus cases just to show that they do take it seriously."

McClatchy's review of nearly 4,000 sexual assault allegations demonstrates that the military has taken a more aggressive stance. Last year, military commanders sent about 70 percent more cases to courts-martial that started as rape or aggravated sexual-assault allegations than they did in 2009.

However, only 27 percent of the defendants were convicted of those offenses or other serious crimes in 2009 and 2010, McClatchy found after reviewing the cases detailed in the Defense Department's annual sexual assault reports. When factoring in convictions for lesser offenses -- such as adultery, which is illegal in the military, or perjury -- about half the cases ended in convictions.

And sometimes, servicemen are falsely accused, as was the case in February 2010 when a Marine Corps Air Station Beaufort Marine was arrested and jailed for more than a month for allegedly sexually assaulting a Laurel Bay woman whose husband was deployed.

The alleged victim, Tracy Lynn Valderrama, admitted three months later to fabricating the assault.

The Marine, whose name was never released, was charged with rape, breaking and entering and larceny, and was later released from the U.S. Naval Consolidated Brig in Charleston after the U.S. Army Criminal Investigative Laboratory found that DNA evidence taken from the crime scene did not match.

Valderrama was indicted by a federal grand jury in June 2010 on three counts of knowingly making false statements to federal investigators during interviews about the alleged attack, including that she was assaulted by a man wearing a mask and gloves who was armed with a knife, federal court records show.

She pleaded guilty in federal court in September to one count of lying to investigators and has yet to be sentenced, according to court records.

Valderrama faces up to five years in prison and a $250,000 fine.

The military's conviction rate for all crimes is more than 90 percent, according to a 2010 report to Congress by the Pentagon.

"The pendulum has swung," said Victor Kelley, a former federal prosecutor who's a defense attorney with the law firm National Military Justice Group. "It may be true that years ago some of these allegations weren't given the attention they deserved. But now many of them are given more deference than they're due."

But legal officials with all four military branches say the low conviction rate shows how difficult it is to convict the suspects, not that innocent people are being sent to trial. One common problem in all courts -- military and civilian alike -- is that a sexual assault victim's behavior comes under attack as much as that of the accused does. As a result, juries may not convict despite hearing significant evidence that a rape occurred.

Making acquittals even more likely, the military is prosecuting more contested cases under a controversial law that broadens the definition of sexual assault. Under the 2006 law, the military can argue that a victim was sexually assaulted because she was "substantially incapacitated" from excessive drinking and couldn't have consented.

"What would you have us do? Tell the victim she can't get justice just because it's a hard case?" asked Timothy MacDonnell, an Army prosecutor who retired in 2008. "Then you're saying to sexual predators, 'Just be careful and make sure you do it in private and you'll get away with it.' "

In dozens of interviews, however, a wide range of people who are involved in the military justice system questioned whether the military was weighing the proper legal considerations when deciding whether to take criminal action.

Unlike in the civilian justice system, a military commander, not a prosecutor, makes the final call on whether to press charges. At times, the commanders disregard their legal advisers' recommendations and pursue allegations of sexual assault, raising concerns that the anti-rape campaign of advocacy groups and Congress is influencing them.

Even some prosecutors say the strategy has backfired, making it more difficult to crack down on the crime in general.

"Because there is this spin-up of 'We have to take cases seriously even though they're crap,' it creates a kind of a climate of blasè attitudes," said one Navy prosecutor, who asked to remain anonymous because she feared retaliation for speaking out.

"There is a pressure to prosecute, prosecute, prosecute. When you get one that's actually real, there's a lot of skepticism. You hear it routinely -- 'Is this a rape case or is this a Navy rape case?' "

The pressure ratcheted up in 2003, when female cadets at the Air Force Academy accused commanders of ignoring their sexual assaults. In the wake of the scandal, the military prosecuted several of the accused.

The cases didn't go well. One of the juries took only 20 minutes in 2006 to acquit a defendant. After a judge dismissed charges against another cadet, civilian prosecutors declined to charge him in 2007 because of a lack of evidence.

In fact, none of the men accused in the scandal were convicted of charges related to non-consensual sex, said attorneys who were involved.

Citing such failures, Congress boosted the military's anti-sexual assault budget and crafted the new law to help prosecute cases.

As lawmakers turned up the pressure, the military acted on the demands. The number of all sex-crime allegations sent to courts-martial increased from 113 in 2004 to 532 in 2010, according to Defense Department data.

Too often, however, defendants are being prosecuted despite qualms about the evidence, attorneys said.

Given the push to prosecute, many commanders may see a trial as the best way to determine whether allegations are true.

"Most of the rape cases that I've defended in the military system never would have gone to trial in a civilian system because the prosecutor would say, 'There's no way I'm taking that to trial because I'm not going to get a conviction,' " said Charles Feldmann, a former military and civilian prosecutor who's now a defense attorney.

"But in the military, the decision-maker is an admiral or a general who is not going to put his career at risk on an iffy rape case by not prosecuting it."